During the
due diligence process, the client, counsel and funder will work
together to understand the key facts and issues in the case. At the
start of the process, the client and funder will enter into a
non-disclosure agreement, in order to confirm the intention to keep
these exchanges confidential.
While no Canadian court has specifically addressed whether
communications with a litigation funder are protected by privilege,
longstanding case law and legal principles support the conclusion
that communications during the due diligence process are likely
protected by:
- Litigation
Privilege: Litigation privilege attaches to all types of
communication exchanged between a client/its counsel and a third
party when the communication is made for the dominant purpose of
litigation. As the Supreme Court of Canada has explained, this is
because the purpose of litigation privilege is to create a
"zone of privacy" in relation to pending or apprehended
litigation and to
